Jones v. Conde — 6 Johns. Ch. 77

Majority

p. 77

Jones and Jones against Conde and Wife.

Headnote

A mortgagee may sue, at the same time, at law, upon the bond, and in this Court on the mortgage.

PETITION of the defendants, stating, that only one year’s interest is in arrear, and due and unpaid, on a bond and mortgage given to the plaintiffs, and that the plaintiffs, in January last, sued the bond at law, and filed a bill to foreclose the mortgage, in this Court; and praying, that the bill be dismissed, with costs, or that the suit in this Court be stayed until the plaintiffs shall have discontinued their suit at law, or pressed the same to the utmost extent, and failed in obtaining their demand.

J. Hamilton, in support of the petition.

p. 78

E. Herring, contra.

He read an affidavit, stating that every reasonable effort and offer had been made to procure a payment of interest, on which the plaintiffs depended for subsistence, and that all efforts had failed.

The rule is settled, that a mortgagee may sue, at the same time, at law, upon his bond, and in this Court upon his mortgage. The case of a mortgagee forms an exception to the general rule, that a party shall not be allowed to sue at law, and here, at the same time, for the same debt. The one remedy is in rem. and the other in personam ; and the general rule to which this case is an exception, applies only to cases where the demand at law and in equity are equally personal, and not where the cumulative remedy is in personam, while the other remedy is upon the pledge. (Booth v. Booth, 2 Atk. 343. Schoole v. Sall, 1 Sch. & Lef. 176 Lord Kenyon, in Smart v. Wolf 3 Term Rep. 342. Boyd v. Heinzelman, 1 Vesey & Beam. 381. Jackson v. Hull, 10 Johns. Rep. 481 . Lord Erskine, in Perry v. Barker, 13 Vesey, 205. Dunkley v. Van Buren, 3 Johns. Ch. Rep. 330 .)

Motion denied, with costs.